Neutral Citation: 2017 ONFSCDRS 134 FSCO A13-001725

BETWEEN:

THOMAS WALDOCK Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

DECISION ON A MOTION

Before: Arbitrator Knox M. Henry

Heard: In person at ADR Chambers on February 16, 2017

Appearances: Mr. Thomas Waldock did not participate Mr. Leonard H. Kunka participated for Mr. Thomas Waldock Mr. Talaal F. Bond participated for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mr. Thomas Waldock, was injured in a motor vehicle accident on March 25, 2008, and sought accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Waldock, through his representative, applied for arbitration at the Financial Services Commission of Ontario ("FSCO") under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Motion are:

Clarification of whether the sum of $361,520.30 awarded to the Applicant for Attendant Care and Housekeeping and Home Maintenance Benefits is in addition to the amounts already paid by State Farm for Attendant Care and Housekeeping and Home Maintenance Benefits.
Clarification of the Oral Order at the Hearing on Expenses on June 25, 2015 and Directions to Counsel, dated July 3, 2015, in regard to submissions pertaining to: (a) The granting of a Special Award; (b) Attendant Care and Housekeeping and Home Maintenance Benefits; and (c) The legal expenses of the Preliminary Issue Hearing and the Hearing on Expenses.

Result:

I confirm that the sum of $361,520.30 awarded to the Applicant for Attendant Care and Housekeeping and Home Maintenance Benefits is NOT in addition to the amounts already paid by State Farm for those benefits following receipt of my November 10, 2014 Decision.
In the oral directions I issued on June 25, 2015 and the confirming written Directions to Counsel of July 3, 2015, I advised the parties they could make further submissions pertaining to: (a) The granting of a Special Award; (b) The Attendant Care and Housekeeping and Home Maintenance Benefits; and (c) The legal expenses of the Preliminary Issue Hearing and the Hearing on Expenses.

I considered the submissions received before issuing my Decision on Expenses, dated November 16, 2015.

EVIDENCE AND ANALYSIS:

The Legislation

Section 65.5 of the Dispute Resolution Practice Code ("the Code") states: ²

An adjudicator may, at any time, correct a typographical error, error of calculation, technical error or similar error made in his or her decision or order.

Section 65.6 of the Code states:

An adjudicator may at any time clarify a decision or order that contains a misstatement, ambiguity or other similar error.

Section 286 of the Insurance Act states:³

WHEN ARIBTRATOR CANNOT ACT.

An arbitrator appointed by the Director cannot vary or revoke an order made by him or her and cannot make a new order to replace an order made by him or her if the order is under appeal.

Background and Submissions

I conducted a Preliminary Issue Hearing on May 27, 28 and 29, 2014, with written submissions completed on August 1, 2014, to determine whether or not Mr. Waldock had suffered a catastrophic impairment as a result of his injuries in the motor vehicle accident which occurred on March 25, 2008. In my Decision, dated November 10, 2014, I ruled that Mr. Waldock's injuries constituted a "catastrophic impairment" within the meaning of section 2(1.2)(f) and (g) of the Schedule.

On June 25, 2015, I heard submissions and made an oral Order, directing both counsel to make written submissions to me via e-mail respecting the expenses and any other issues they felt were outstanding. On July 3, 2015, I issued a written direction to counsel, confirming my oral Order of June 25, 2015. I issued a Decision on November 16, 2015, ordering the payment of expenses. State Farm appealed that Decision. Shortly thereafter, counsel for Mr. Waldock brought a Motion seeking clarification of aspects of my November 16, 2015 Decision.

However, because an Appeal had been filed by State Farm, FSCO refused to allow me to hear a Motion to clarify my Decision. Director's Delegate Feldman ruled on July 27, 2016 that I was prohibited from hearing a Motion for any clarification of my Decision of November 16, 2015.

By his letter, dated August 16, 2016, Director's Delegate Evans ruled that the Motion was improper, pursuant to section 286 of the Insurance Act, as my Decision was under Appeal. Director's Delegate Evans submitted that Shadd and Liberty Mutual Insurance Company⁴ should be followed and, in his opinion, it also applied to corrections despite the broad wording of the Code. Director's Delegate Evans ruled that Mr. Waldock was "enjoined from bringing this motion and the Arbitrator should not hear it".

In Shadd, Mr. David Draper, FSCO's Director of Arbitrations, ruled that while section 286 "can cause practical problems", it must be followed.

I do not disagree that section 286 is the dominant legislation.

However, Justice Molloy of the Superior Court of Justice – Divisional Court, by an Endorsement dated October 21, 2016,⁵ permitted that I could decide whether I have jurisdiction to provide clarification of my Decision. Her Order stated, in part:

Order Permitting Arbitrator Henry to Hear the Motion

[23] The other form of relief sought in the judicial review proceeding is an order granting permission to Arbitrator Henry to provide clarification of his Decision on Expenses. In my view this relief is unnecessary and inappropriate.

[24] If the Divisional Court quashes the decision of Delegate Evans, there will be no impediment to the Arbitrator hearing argument on the motion for clarification. If the Divisional Court determines that Delegate Evans did not err and that his decision should stand, then the motion for clarification clearly cannot proceed. Therefore, a determination on the Order of Delegate Evans would make it unnecessary for the Court to grant "permission" for the Arbitrator to proceed.

[25] ... it would be inappropriate for this Court to issue a declaration in advance authorizing the Arbitrator to issue a clarification. That decision should be made in the first instance by the Arbitrator, and then subject to appeal to the tribunal. The Divisional Court ought not to step in prematurely to render a decision as to the Arbitrator's jurisdiction or potential jurisdiction.

Mr. Waldock's Submissions

Counsel for Mr. Waldock submitted in the hearing of the Motion on February 16, 2017 that I had the jurisdiction to clarify the amount of the award for Attendant Care and Housekeeping and Home Maintenance Benefits in my Decision, pursuant to sections 65.5 and 65.6 of the Code, as my Decision of November 16, 2015 was a Decision on a Preliminary Issue and not a Decision following a Hearing.

State Farm's Submissions

State Farm's counsel disagreed with Mr. Waldock's position, submitting that Rule 65 of the Code is subordinate to section 286 of the Insurance Act as set out by Director Delegate Draper in Shadd.

State Farm further submitted that while the Director of Arbitrations and his or her Delegates are entitled to deference within their jurisdiction and expertise, the interpretation of the Commission's own statute in its own rules of procedure necessarily come within the ambit of that jurisdiction and expertise. State Farm submits that this was confirmed in Pastore v. Aviva Canada Inc. ⁶

State Farm further submitted that, in any event, the nature of the clarification sought by Mr. Waldock exceeds the parameters of Rules 65.5 and 65.6 of the Code.

State Farm further submitted that I was functus officio (without authority) following the Hearing on Expenses and thus had no jurisdiction to deal with this matter of clarification. Should I express any comment to provide clarification, I was in fact putting myself in the position of a witness and giving evidence, thus acting contrarily to my position as an Arbitrator, whose responsibility is to make judgement on the facts put before him or her, not to provide facts.

Analysis

I regret that I erred and did not provide proper clarification in my Decision on Expenses. It has, as Justice Molloy stated, caused "considerable delay that has already elapsed in respect of a compensation claim for a catastrophic injury that occurred in 2008."

While section 286 of the Insurance Act states otherwise, I agree with Mr. Waldock's submissions and adopt the Endorsement by Justice Molloy allowing me permission to provide the clarification required, as I find it appropriate and within my jurisdiction in this matter. The parties can Appeal my Decision to provide that clarification, should they so desire.

Issue 1: The $361,520.30 payment for Attendant Care and Housekeeping and Home Maintenance Benefits

I accept that I failed to clarify in my Decision that the payment to Mr. Waldock of $361,520.30 by State Farm for his Attendant Care and Housekeeping and Home Maintenance Benefits was not in addition to the amounts for these benefits that State Farm has already been paying to Mr. Waldock.

Issue 2: Oral Order and Direction to Counsel

The issue of Mr. Waldock's request for a Special Award was extensively dealt with in my Decision of November 16, 2015. State Farm submits that Mr. Waldock cannot claim a Special Award after a Hearing is concluded and further submitted that it had not had an opportunity to make submissions on the imposition and the amount of the Special Award. I disagree. State Farm was provided with ample opportunity to respond to Mr. Waldock's claim for a Special Award.

In my Oral Order at the Hearing on Expenses on June 25, 2015 and Directions to Counsel, dated July 3, 2015, I directed that both parties were to provide written submissions via e-mail to me. I find that my June 25, 2015 and July 3, 2015 actions afforded both parties the opportunity to make submissions on this issue as well as any other issues they felt should be raised respecting the Special Award, expenses, etc.

I clearly advised both parties that should they have any other concerns or items that needed addressing, they could submit same, in writing, for my consideration.

I requested and received some submissions from both parties. After consideration, I ruled that I had not conducted a 'Hearing" but had only conducted a "Preliminary Issue Hearing" to determine if Mr. Waldock's injuries were deemed to be catastrophic.

Subsequently, I conducted a Hearing on Expenses, resulting in my Decision of November 16, 2015, wherein I granted expenses and interest thereon, and a Special Award to Mr. Waldock.

EXPENSES:

Neither party requested expenses in this matter. None are awarded.

May 8, 2017

Knox M. Henry Arbitrator

Date

Financial Services Commission of Ontario